36:0019(3)AR - - AFGE, National Council of EEOC Locals, Local 216 and Equal Employment Opportunity Commission - - 1990 FLRAdec AR - - v36 p19
[ v36 p19 ]
The decision of the Authority follows:
36 FLRA No. 3
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF EEOC LOCALS
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ORDER DISMISSING EXCEPTIONS
June 5, 1990
Before Chairman McKee and Member Armendariz.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to two decisions of National Umpire Oscar Ornati filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(2) The Agency filed an opposition to the Union's exceptions.
The National Umpire was requested to decide two matters under the provisions of the voluntary advisory impasse resolution procedure contained in Article 8, Section 8.06, of the parties' collective bargaining agreement (CBA). The Umpire issued a decision on January 9, 1989, in which he denied the Union's request for a ruling accepting the Union's counterproposal on ground rules as binding for renegotiating the collective bargaining agreement. In a second decision dated January 19, 1989, the Umpire ruled that the Agency's last best offers on three proposals concerning the impact and implementation of the General Performance Appraisal and Recognition System (GPARS) should be adopted.
We find, as we did in American Federation of Government Employees, National Council of EEOC Locals, Local 216 and U.S. Equal Employment Commission, 36 FLRA No. 2 (1990) (EEOC), that we do not have jurisdiction to consider exceptions to decisions of the National Umpire made under the negotiated impasse resolution procedure in the parties' collective bargaining agreement because those decisions are advisory, not binding, and do not constitute arbitration awards to which exceptions may be filed under section 7122(a) of the Statute. Moreover, we conclude that even if the Umpire's decisions were found to be awards for purposes of section 7122(a) of the Statute, we are without jurisdiction to consider the Union's exceptions under section 7122(a) because they were untimely filed.
II. Background and Umpire's Decisions
The parties' collective bargaining agreement contains a voluntary advisory final offer selection procedure for impasse resolution. The procedure is intended as a means of resolving negotiation disputes by a National Umpire before taking them to the Federal Service Impasses Panel (Panel). This case concerns two decisions made by the National Umpire under the procedure.
In the first matter, the Union invoked the advisory final offer procedure with regard to a dispute over ground rules for negotiations. The Agency had requested a postponement of negotiations and the Union had refused to agree to the postponement. The Union asked the National Umpire to declare that an impasse existed and to declare the Union's final offer to be binding. The National Umpire issued a decision entitled "Decision On Procedures On Setting 'Ground Rules' For the Negotiations of A New Agreement." Exhibit D to Union's Exceptions (Case 1989/1 at 1). In his decision, dated January 9, 1989, the National Umpire ruled that the parties were not at impasse. He denied the Union's request for a decision on its last best offer.
The National Umpire's decision in the second matter is entitled "Decision On An Impasse Relating To The Impact And Implementation Of The FY'89 GPAR Agreements." Exhibit F to Union's Exceptions (Case 1989/2 at 1). The Umpire stated that on December 22, 1988, the Agency claimed that an impasse existed in the negotiation of the 1989 GPAR agreements and submitted its last best offer on the matter. On December 23, the Union also claimed that an impasse existed and requested the Umpire's intervention for selection of the appropriate last best offer. The Union also requested an oral hearing in order to clarify its last best offer. The Umpire held the hearing on January 13, 1989. The Union failed to attend. In his decision dated January 19, 1989, the National Umpire ruled that, based on the record before him, the last best offer on each of the three disputed proposals was that of management.
III. Positions of the Parties
A. Union's Exceptions
The Union states that the parties' collective bargaining agreement created the positions of National Umpire and National Arbitrator to police and enforce the agreement. The Union notes that it appealed the two decisions of the National Umpire to the National Arbitrator and that the National Arbitrator issued two decisions, each dated March 4, 1989. In those decisions, the National Arbitrator concluded that he had no authority to review either of the decisions of the National Umpire. The Union states that it is now invoking the Authority's jurisdiction to review the Umpire's decisions.
As its first exception, the Union contends that "[t]he National Umpire exceeded his contractual authority by unilaterally granting the Agency's request for an extension of time without the Union's consent as required by the CBA." Exceptions at 2. The Union states that it made its request for a ruling on an impasse on December 28, and that under Article 8, Section 8.6(a) of the agreement, the Umpire was required to issue a decision within 5 days. The Union contends that the Umpire failed to follow the agreement requirement that deadlines may be extended only by the mutual consent of the parties. The Union requests that the January 9 decision "be remanded to the National Umpire with directions to apply the CBA in accordance with Article 8.06, i.e., implement the Union's final best offer[.]" Id. at 3.
The Union's second exception is that "[t]he National Umpire unilaterally and arbitrarily denied the Union an opportunity to appear and present evidence at a grievance hearing and relied on the Agency to present the Union's position(s)." Id. at 2. The Union states that the parties attempted to mutually agree on a hearing date on the subject of GPAR, but contends that the National Umpire selected January 13 unilaterally, even though he was informed that the date was impossible for the Union for medical reasons and because of the training schedules of Union negotiators. The Union maintains that the National Umpire "ignored the right of the Union to be present, conducted a hearing without the Union and issued a decision dated January 19, 1989." Id. at 3. The Union requests that the January 19 decision concerning GPAR be set aside and a hearing granted in accordance with Article 8.06(d).
B. Agency's Opposition
As a preliminary matter, the Agency contends that the Authority does not have jurisdiction over the Union's exceptions because they are untimely filed under section 2425.1(b) of the Authority's Rules and Regulations, which states that "[t]he time limit for filing an exception to an arbitration award is thirty (30) days beginning on the date the award is served on the filing party." The Agency asserts that the Umpire's final decisions were dated January 9 and January 13 and that the Union's exceptions were not filed until March 13, approximately 60 days later.
The Agency contends that the fact that the Union filed exceptions to the National Umpire's decisions with the National Arbitrator and that the National Arbitrator ruled that he was without jurisdiction to consider those exceptions does not excuse the untimely filing of exceptions with the Authority.
The Agency also contends that the Authority does not have jurisdiction over decisions of the National Umpire because, under the terms of the collective bargaining agreement, appeals from the Umpire's decisions must be filed with the Panel. The Agency notes that it has opposed the Union's exceptions in another matter filed with the Authority and requests that we take judicial notice of that opposition in deciding the present case.
The Agency denies that the Union was deprived of its rights to due process because the National Umpire scheduled a hearing on the GPAR impasse for a day on which the Union could not attend. The Agency points out that the Umpire offered the parties the opportunity for a telephone hearing and that he also offered various dates for a hearing. The Agency asserts that despite the Umpire's efforts to accommodate the Union by offering various hearing dates and by scheduling the hearing in New York City, "[t]he Union simply chose not [to] appear[.]" Opposition at 3.
The Agency contends that "the Union's assertion that the National Umpire exceeded his authority by unilaterally granting Management an extension of time in which to conduct ground rules negotiations, is also non-meritorious." Id. at 4. The Agency maintains that the Umpire refused to impose the Union's proposal and instead "found that the parties were not at impasse since negotiations had never begun." Id. The Agency contends that the Union is only disagreeing with the Umpire's decision in that regard, which is not a basis for setting the decision aside.
IV. Analysis and Conclusion
An underlying question in this case is whether the Umpire's decisions under the parties' negotiated impasse resolution procedure constitute arbitration awards to which exceptions may be filed with the Authority pursuant to section 7122(a) of the Statute. The Agency contends that the Union should appeal the Umpire's decisions to the Panel and points out that the same issue is before the Authority in Case No. 0-AR-1657, which concerns other advisory final offer decisions made by the National Umpire. See Opposition at 2.
In EEOC, we held that we do not have jurisdiction to consider exceptions to decisions of the National Umpire made under the negotiated impasse resolution procedure in the parties' collective bargaining agreement because those decisions are advisory, not binding, and do not constitute arbitration awards to which exceptions may be filed under section 7122(a) of the Statute. Because the decisions excepted to in the instant case were made under the same negotiated impasse resolution procedure, the decisions also are advisory. Accordingly, we are without jurisdiction to consider the Union's exceptions and they will be dismissed.(3)
Further, even if the Umpire's decisions were found to constitute arbitration awards to which exceptions may be filed under section 7122(a), the Union's exceptions could not be considered because they are untimely. The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. º 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. º 2429.27(d). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date of service of the award. See Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. º 2429.22. The time limit may not be extended or waived by the Authority. 5 C.F.R. º 2429.23(d). All documents filed with the Authority must be filed in the Authority's Docket Room, 500 C Street, SW., Washington, D.C. 20424. 5 C.F.R. º 2429.24(a).
The Umpire's decisions are dated January 9, 1989 (Case 1989/1) and January 19, 1989 (Case 1989/2). Assuming that the decisions were deposited in the U.S. mail on those dates, exceptions to the decisions had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than February 13, 1989 (Case 1989/1) and February 23, 1989 (Case 1989/2) in order to be considered timely. 5 C.F.R. ºº 2425.1(b), 2429.21(b) and 2429.22.
The Union's exceptions to the Umpire's decisions were dated March 13, 1989 and were received in the Authority's Docket Room on March 15, 1989. Accordingly, even if the Authority otherwise had jurisdiction to consider the exceptions filed on March 15, the exceptions were untimely filed and must be dismissed. See, for example, American Federation of Government Employees, Local 1960 and Naval Education and Training Program Development Center, Pensacola, Florida, 34 FLRA 799, 802-03 (1990).
The Union's exceptions are dismissed.
(If blank, the decision does not have footnotes.)
1. Member Talkin did not participate in this decision because the case involves the Equal Employment Opportunity Commission and a dispute which arose while she was Chief of Staff of the Commission.
2. The Union also requested a stay of the Umpire's decisions when it filed its exceptions to the decisions with the Authority on March 13, 1989. Effective December 31, 1986, the Authority's Regulations were revised to revoke those portions pertaining to the filing of requests for stays of arbitration awards (51 Fed. Reg. 45754). Accordingly, no action on the stay request was taken.
3. In view of this disposition and in the absence of any discussion or argument by the parties on the court decisions pertaining to the review of interest arbitration awards, we do not address the effect, if any, of those decisions on our determination. See Department of Agriculture v. FLRA, 879 F.2d 655 (9th Cir. 1989), vacated in part on rehearing, 8